In a courthouse not far from where Barack Obama accepted the nomination for president, the Justice Department on Monday will argue against a Kansas law requiring documented proof of citizenship to register to vote.
Justice Department lawyer Bonnie Robin-Vergeer will face off in the 10th Circuit Court of Appeals in Denver against Kris Kobach, Kansas secretary of state and champion of voter-ID laws across the country.
The issue at hand is the constitutionality of part of Kobach’s Secure and Fair Elections Act. The Kansas law passed in 2011 requires all newly registering voters to present official documents, almost always a birth certificate or passport, to prove their citizenship before they are allowed to vote.
The requirement is stricter, separate from and in addition to the better-known SAFE Act provision requiring driver’s licenses or other photo ID to cast a ballot at the polls.
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Specifically, the appeals court will have to decide whether the federal Election Assistance Commission will have to add Kansas proof-of-citizenship requirements to the state-specific instructions for voters who register using a federal voter-registration form.
Wichita federal Judge Eric Melgren has ruled that the commission must do that.
The Justice Department is representing the federal commission and appealed the case to the circuit court, which stayed Melgren’s ruling until the appeal is heard.
The case has drawn widespread national attention.
In addition to Kansas, Kobach will be directly representing Arizona, which has a similar proof-of-citizenship law. Alabama, Georgia and several conservative legal foundations have joined the case on his side.
The commission and Justice Department are joined by a host of voting-rights advocates, including the League of Women Voters, Rock the Vote and U.S. House Minority Leader Nancy Pelosi and Democratic caucus leaders.
Kobach’s primary argument is that documental proof of citizenship is needed as a hedge against voting fraud and to prevent noncitizen immigrants from voting in U.S. elections.
The Election Assistance Commission maintains that its requirement of a sworn statement of citizenship, under penalty of perjury, is sufficient to ensure election integrity.
The federal agencies and their supporters are also arguing that Kansas’ document requirement is an unconstitutional hurdle to the right to vote.
The case is expected to turn on interpretation of last year’s ruling by the Supreme Court in the case of Arizona v. Inter Tribal Council.
In that case, the justices struck down Arizona’s proof-of-citizenship law, ruling that it conflicts with the National Voter Registration Act. That act, better known as the “motor voter” law, requires states to accept and use the federal form to register voters.
Kobach cites language in the Inter Tribal ruling that said states can challenge the decisions of the EAC on what is “necessary” to ensure voting qualifications, which he said was basically an invitation to file the states’ lawsuit.
If Kobach wins, Kansas voters will have to comply with the document requirement.
If he loses, he plans to continue a two-tier voting system he created in which federally registered voters can cast ballots, but the only votes that will be counted will be for federal candidates in congressional or presidential races.
A loss for Kobach could also revive a related lawsuit in a Topeka court that is more or less on hold awaiting a decision in the current case.
The American Civil Liberties Union has sued to stop the two-tier voting system, arguing that it’s unconstitutional to create classes of voters and treat them differently based on which form they use to register.
If Kobach loses both cases, Kansans would be able to register using the federal form without providing documents proving citizenship.
Reach Dion Lefler at 316-268-6527 or firstname.lastname@example.org.